Docket 911 | Mich. Ct. App. | Nov 9, 1966
PEOPLE
v.
FORE.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Norman K. Kravitz, Assistant Prosecuting Attorney, for plaintiff.
C. Blair Mohney, for defendant.
*133 BURNS, J.
Defendant was tried by a jury and convicted of larceny from a person.[1] Shortly after his arrest the defendant made certain oral admissions amounting to a confession in the presence of 2 police officers and other men. At the trial these persons testified as to what the defendant had said. No objection was raised to their testimony. The defendant testified on his own behalf and denied making the confession.
The trial was held prior to the decision of People v. Walker (on rehearing, 1965), 374 Mich. 331" court="Mich." date_filed="1965-01-05" href="https://app.midpage.ai/document/people-v-walker-1716479?utm_source=webapp" opinion_id="1716479">374 Mich. 331. On appeal the defendant claims the case should be remanded to the trial court for a determination of the voluntariness of his confession pursuant to People v. Walker, supra.
Counsel for the defendant recognizes the well-settled rule that questions not presented in the trial court cannot be raised on appeal, but argues that the error in this case is so obvious and serious that it warrants our consideration in order to prevent a miscarriage of justice. Unusual circumstances have at times caused a relaxation of the general rule (see People v. Dorrikas [1958], 354 Mich. 303" court="Mich." date_filed="1958-10-13" href="https://app.midpage.ai/document/people-v-dorrikas-2041225?utm_source=webapp" opinion_id="2041225">354 Mich. 303 and cases cited therein), but we find no need to do so in this case. At the trial the defendant absolutely denied making any confession. Now he more or less admits that a confession was made. The paradox thus created destroys any and all of the serious character or injustice possibly associated with the alleged error.
Furthermore, People v. Barker (1886), 60 Mich. 277" court="Mich." date_filed="1886-04-08" href="https://app.midpage.ai/document/people-v-barker-7932477?utm_source=webapp" opinion_id="7932477">60 Mich. 277, 296 (1 Am St Rep 501), long ago decided that:
"Unless it appears from the testimony of the witness, or other evidence in the case, that the confession was not voluntary, or was made through the *134 influence of fear or hope; or unless the evidence offered is objected to upon the ground that the confessions were made in consequence of fear, or of favors held out to the prisoners, no preliminary examination into the facts and circumstances is called for. If, however, the contrary does appear, or the objection is made, then the preliminary examination must be had."
For a more recent case setting forth the same principle in a similar situation, see People v. Lundberg (1961), 364 Mich. 596" court="Mich." date_filed="1961-11-30" href="https://app.midpage.ai/document/people-v-lundberg-2050484?utm_source=webapp" opinion_id="2050484">364 Mich. 596, page 604.
It does not appear that the confession was not voluntary, nor that any objection was made; therefore, we have no error to review.
Judgment affirmed.
HOLBROOK, P.J., and QUINN, J., concurred.
NOTES
[1] CL 1948, § 750.357 (Stat Ann 1954 Rev § 28.589).